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The New Zealand Institute for the Study of Competition and Regulation · ISCR

Permanent URI for this collectionhttps://ir.wgtn.ac.nz/handle/123456789/30540

Information on the Institute for the Study of Competition and Regulation

Founded in 1998 and closed in 2015, the Institute for the Study of Competition and Regulation (ISCR) was an independent, nonprofit research institute located at Victoria University of Wellington's Pipitea Campus. Funding of its activities was provided by members, project work, and research grants. The primary objectives of ISCR research were to assist in understanding:

  • how markets and organisations operate
  • how markets provide appropriate incentives and disciplines for organisations
  • the limitations of markets, and the role of regulation in addressing these limitations
  • the importance of property rights and institutional structures in facilitating effectiveness of markets, organisations, competition, and regulation in New Zealand

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Browsing The New Zealand Institute for the Study of Competition and Regulation · ISCR by Author "Berry, Mark"

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    Competition Law: Discussion on Three Recent Decisions
    (Te Herenga Waka—Victoria University of Wellington, 2006) Berry, Mark
    This review discusses developments arising from three recent decisions in the field of competition law.The first is the High Court of Australia's decision in NT Power Generation Pty Ltd v Power & Water Authority [2004] HCA 48 ("NT Power"). That decision relates to the application of monopolisation laws in circumstances where there is a denial of access to a so-called "essential facility". The focus of the discussion of this case here is upon the "taking advantage" limb of the monopolisation test under s 36 of the Commerce Act 1986. This inquiry is of particular importance because it establishes whether there is a causal connection between the existence and relevant use of monopoly power.The second topic is the Court of Appeal's discussion of the "purpose test" under Part II of the Commerce Act in ANZCO Foods Waitara Ltd v AFFCO NZ Ltd (CA 181/04 23 June 2005).This review concludes with a discussion of the principles applying to the variation and revocation of authorisations as enunciated in the Commerce Commission's most recent OMV/Shell/Todd ("Pohokura") decision (Decision 581 2 June 2006).
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    Competition Law: Privy Council's Interpretation of Monopolisation Provisions of s36 Commerce Act 1986
    (Te Herenga Waka—Victoria University of Wellington, 2005) Berry, Mark
    The abuse of market power by monopolists has long been a central concern of competition laws. However the formulation and application of an appropriate rule against monopolisation has proven to be highly problematic largely because it is difficult to differentiate between vigorous competition (which will benefit consumers) and unlawful monopolisation (which will ultimately harm consumers). The problem is that both of these forms of competition can look alike. Section 36 of the Commerce Act 1986 prohibits persons with a substantial degree of market power from taking advantage of such power for the purpose of restricting preventing deterring or eliminating competition. Accordingly the provision involves a preliminary market power threshold inquiry followed where relevant by an inquiry into whether the conduct in question may properly be characterised as having the purpose of taking advantage of that power. This commentary focuses on this second inquiry namely whether the conduct of a fi rm with a substantial degree of market power can be characterised as monopolistic.
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    The Efficiencies Defence in Merger Analysis: A New Zealand Perspective
    (Te Herenga Waka—Victoria University of Wellington, 2000) Berry, Mark; Pickford, Mike
    New Zealand's current competition laws like Canada's are comparatively new. The Commerce Act (the "Act") and Canada's Competition Act were both passed in 1986. The New Zealand Act in essence recognises the efficiencies defence. Where a merger is likely to result in the acquisition of a dominant position in a market it is open to the merger parties to apply to the Commerce Commission (the "Commission") under section 67 for authorisation prior to implementation. This process requires the Commission to identify and weigh the detriments likely to flow from the acquiring of a dominant position in the relevant markets and to balance those against the public benefits likely to flow from the acquisition as a whole. Since 1990 there has been explicit statutory guidance under section 3A that efficiencies must be taken into account in assessing public benefits. If the Commission is satisfied that the benefits outweigh the detriments the proposed merger will be authorised.Thus there are striking similarities between the New Zealand position section 96 of the Canadian Competition Act and the US governmental guidelines described in Professor Mathewson's paper. What follows is an outline of the Commission's approach in New Zealand. This outline reflects a more tolerant approach than is apparently the case in Canada. Indeed seven mergers raising dominance concerns have already been authorised on public benefit grounds.
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    Electricity Network Price Regulation: An Update
    (Te Herenga Waka—Victoria University of Wellington, 2008) Evans, Lewis; Berry, Mark
    This seminar will update developments on changes to Part 4A of the Commerce Act as outlined in the Commerce Amendment Bill 2008. Topics will include: (1) purpose statements (2) thresholds/default price-quality paths and problems in transition (3) the scope and meaning of input methodologies (4) exemptions (5) appeals and (6) customised proposals. Both economic and legal aspects will be considered.
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    The New Regulatory Regime for Electricity Lines Businesses: Great Expectations Unfulfilled
    (Te Herenga Waka—Victoria University of Wellington, 2008) Evans, Lewis; Berry, Mark
    A new regulatory regime applying to Electricity Lines Businesses (ELBs) will come into force on 1 April 2009. These reforms are set out in the Commerce Amendment Bill 2008 which passed its Third Reading on 5 September 2008. Although many commentators have welcomed the Bill it may well prove to be disappointing. In particular compromise over a dynamic efficiency objective lack of clarity about an introduced concept "input methodologies" and limited appeal rights portend uncertainty and issues to be resolved.
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    The Role of Merit Reviews under Part 4 and 4A of the Commerce Act
    (Te Herenga Waka—Victoria University of Wellington, 2008) Houston, Greg; Berry, Mark
    This presentation looks at:What is a Merits Review? The Australian Experience in Energy Regulation The New Zealand Proposal A Better Approach?
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    The State of the Failing Company Defence in New Zealand
    (Te Herenga Waka—Victoria University of Wellington, 2000) Berry, Mark
    This brief outline identifies the various issues which confront the failing company defence. This article will:(1) briefly outline the competition laws which apply to mergers in New Zealand;(2) examine the theoretical basis for the defence with particular reference to the New Zealand setting;(3) briefly review the North American approach to the failing company defence; and(4) critically review the response to the defence in New Zealand by both the judiciary and the enforcement agency namely the Commerce Commission. The discussion of New Zealand developments will also trace the closely-related Australian response to the defence.